Law & Disorder —

Copy some webpages, owe more than the national debt

Damages of up to $150,000 per infraction can make even the threat of a …

The Internet Archive's "Wayback Machine" is a set of snapshots of the Web over time. It's a wonderful way to delve into the past (see Ars in its 1999 black-and-green glory to learn why "ERD Commander turns me on"), but it's only possible thanks to rampant copying—and the potential copyright infringement that goes along with such copies. Thanks to US law, a successful copyright suit against the Wayback Machine could put the nonprofit Internet Archive on the hook for up to $150,000 per infringement.

Multiply that $150,000 by the number of individual pages in the Archive and you quickly run into some serious damages. The Electronic Frontier Foundation does the math (PDF):

As of December 18, 2010, the Internet Archive had 600 preserved images of the website for the Recording Industry Association of America (RIAA). Were the RIAA to sue the Internet Archive for copyright infringement based on these preserved images and prevail, the Archive would face up to $89 million in statutory damages, even absent a finding of actual harm or any reprehensibility. And these 600 images of the RIAA website are but a small drop in the large lake of information that the Archive has collected, which includes over 150 billion web pages. Based on this figure, if all copyright owners of those webpages (or a certified class of them) were to sue and prevail, the Archive would face potential statutory damages of close to 2,000 times the United States’ national debt.

Sure, it's quite possible the Archive would win such a case, just as Google won the right to make thumbnail copies of copyrighted images for its search engine, but the possibility of losing is so terrifying that it might encourage settlement—or scare entrepreneurs off such ideas altogether. And damages can be awarded without any need to prove actual losses.

"Without balance, and especially where there is no evidence of actual harm or reprehensibility, excessive statutory damage awards can stifle creativity and innovation that involves even a small risk of copyright liability," says the EFF.

In its view, these statutory damage awards must establish some connection between the harm and the damages; otherwise, judges are right to slash such awards.

That's what happened in the first two file-sharing lawsuits against young music swapper Jammie Thomas-Rasset of Minnesota and Joel Tenenbaum in Massachusetts. In both cases, juries awarded huge awards—$1.9 million against Thomas-Rasset and $675,000 against Tenenbaum. In both cases, the federal judges overseeing the trials cut these awards down to $54,000 and $67,500, respectively.

The Tenenbaum case is now on appeal to the First Circuit, which is considering whether the judge was right to cut a jury award by a factor of 10. The recording industry says no; Congress wrote the amounts into law, so there's no reason to overturn a jury's decision that stays within those legal limits.

But the EFF argues that the issue is a constitutional one about due process and that simply writing an amount into law has no ability to override that basic protection. EFF lawyers aren't particularly concerned with Tenenbaum in their new filing, but instead point out to the court that unconstrained statutory damage awards are hurting innovators.

This can be especially true in the digital world, where computers make copies simple. Do anything controversial with your business model, such as putting a commercial "autoskip" button on your DVR (as SONICblue did with ReplayTV in the early 2000s), and you could be liable for millions of infractions, even if the total harm was negligible or even nonexistent.

EFF argues that the Tenenbaum ruling linking statutory damages and harm must therefore stay in place, and it calls the issue "one of the most pressing problems in modern copyright."

You have absolute control over media/infomation you have defacto control over public thought thus free speech.

Sorry we need more free flowing media and information not less, the only possible way to do thati a capitilistic system is to allow the free exchange of media/information and ideals via non for profit attemping means allowing the for profit market and their license chains to co exist in a better eco system for all, anythign less is fascist martial law on thought and speech via contrived and vague rules made not by the public but those in control of the public.

"2,000 times the United States’ national debt"?!? I want in on that lawsuit!

When I close my eyes and rock in the corner, I imagine that we're approaching the scene in Brazil where the giant ministry building explodes sending paperwork everywhere. On those papers are all the legal filings that corporate lawyers have been generating over the past decade, now destined to line the makeshift beds of homeless people behind a dumpster...

The only way to view a web page is to download a copy. Don't put things on the internet if you don't want them copied. Putting up a web page is like handing out a hundred million printed fliers. You can't complain because everybody has a copy.

The only way to view a web page is to download a copy. Don't put things on the internet if you don't want them copied. Putting up a web page is like handing out a hundred million printed fliers. You can't complain because everybody has a copy.

I'm not having any luck finding a reference (burried under results for more recent events), but IIRC the feds arrested an admin for violating wiretapping laws back in the 80's because in the process of sending email the server software made copies of it.

Nate, has RIAA actually sued Wayback Machine or is this all hypothetical?

Hypothetical.

The wayback machine WOULD NOT lose a copyright infringement case. It has a very strong fair use defense on two points.

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;2. the nature of the copyrighted work;3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and4. the effect of the use upon the potential market for or value of the copyrighted work.

The Wayback Machine is a non-commercial archive intended to depict the evolution of content on the web itself for the purposes of leaving a historical record of something which by its nature is perpetually fleeting, a challenging task but one with substantial educational and cultural value to future generations.

Admittedly, this means copying a lot of material that belongs to other companies. But such is the nature of the internet and business today that many of the companies from the 1999 scrapes of the internet no longer exist, and yet that fact itself is due to a massive historical event (the collapse of .COMs).

It also has no impact on value either because it is merely recreating the original product (and serving it at an agonizingly slow pace for that matter).

No judge would rule against Wayback Machine given the nature of what they are doing.

It's fun to compare things that have nothing to do with each other, isn't it? Copy a web page and get fined more than the average barometric pressure in Fargo, ND in February!

This is possibly the most asinine complaint I've seen on an Ars article in a long time. He's comparing dollars owed to dollars owed. It doesn't get much more related than that. Even if one of those dollar amounts is purely hypothetical, they're both the same unit.

The only way to view a web page is to download a copy. Don't put things on the internet if you don't want them copied. Putting up a web page is like handing out a hundred million printed fliers. You can't complain because everybody has a copy.

Playing the devil's advocate here. The copy your browser makes in cache for viewing web pages (and other copies in your computer's memory) are fundamentally different from the copies made by the Wayback Machine, in that they are transient and not intended for further making available of the website. I think there are similar decisions regarding software licensing that say the same about copies of software programs made in hardware that are necessary for the code execution and copies made e.g. in redistributable media.

This is not to say I fully agree with the position that Wayback Machine should be subject to copyright infringement laws. But the question isn't simple (they never are...). Think of a library. Would you say it has the right to copy printed material without authorization in order to make them available for the public? The least they do is buy the books/magazines/newspapers. After obtaining the copyrighted material legally, they are then under the exemption in copyright law that allows libraries to make the material available to the public.

Anyway, this is just more proof that copyright laws are simply inadequate for the challenges of digital media.

DanNeely wrote:

GeorgeSoros wrote:

The only way to view a web page is to download a copy. Don't put things on the internet if you don't want them copied. Putting up a web page is like handing out a hundred million printed fliers. You can't complain because everybody has a copy.

I'm not having any luck finding a reference (burried under results for more recent events), but IIRC the feds arrested an admin for violating wiretapping laws back in the 80's because in the process of sending email the server software made copies of it.

I seem to remember something a bit more recent (as in a few weeks ago) about some IRS guy who had his boss' email redirected to his computer and was convicted under wiretapping laws because the redirection took place at the server rather than after being received by the boss on his computer. Therefore they considered it an interception rather than a mere copy of the emails.

Playing the devil's advocate here. The copy your browser makes in cache for viewing web pages (and other copies in your computer's memory) are fundamentally different from the copies made by the Wayback Machine, in that they are transient and not intended for further making available of the website. I think there are similar decisions regarding software licensing that say the same about copies of software programs made in hardware that are necessary for the code execution and copies made e.g. in redistributable media.

Continuing along those lines, the Wayback Machine is essentially mirroring sites and all the changes they make without permission. Is mirroring a site without permission legal?

Then again, even if the cacheing argument fails, the use of proxy servers might work.

Personally, I think intellectual "property" rights are immoral and illiberal because they infringe on actual property rights, but I'm just continuing the Devil's Advocate.

This is not to say I fully agree with the position that Wayback Machine should be subject to copyright infringement laws. But the question isn't simple (they never are...). Think of a library. Would you say it has the right to copy printed material without authorization in order to make them available for the public? The least they do is buy the books/magazines/newspapers. After obtaining the copyrighted material legally, they are then under the exemption in copyright law that allows libraries to make the material available to the public.

It's fun to compare things that have nothing to do with each other, isn't it? Copy a web page and get fined more than the average barometric pressure in Fargo, ND in February!

This is possibly the most asinine complaint I've seen on an Ars article in a long time. He's comparing dollars owed to dollars owed. It doesn't get much more related than that. Even if one of those dollar amounts is purely hypothetical, they're both the same unit.

It is no dumber than the rest of this article about a non-existent theoretical lawsuit. Why Ars is publishing the EFF's hysterical rantings is beyond me.

Think of a library. Would you say it has the right to copy printed material without authorization in order to make them available for the public?

I maybe wrong, but I was always under the impression that libraries generally pay a higher rate for books in order to gain the right to distribute them. They can't just run to the nearest Barnes and Noble, buy a book off the shelves, and then start lending it out.

This is not to say I fully agree with the position that Wayback Machine should be subject to copyright infringement laws. But the question isn't simple (they never are...). Think of a library. Would you say it has the right to copy printed material without authorization in order to make them available for the public? The least they do is buy the books/magazines/newspapers. After obtaining the copyrighted material legally, they are then under the exemption in copyright law that allows libraries to make the material available to the public.

No, I think you should be serious. Your argument here is what? That digital information cannot have value in dollars? Or that an upper limit exists on digital value?

Of course there's an upper limit. Digital information cannot be worth more than all existing money. That's really the maximum value it could be exchanged for. Two thousand times the national debt is probably more money than currently exists.

In practice it's not worth much more than the average person's disposable income. Fines that scale into the millions and exceed the average individual's lifetime earnings are rather pointless as they'll never be fully paid. The statutory damages for digital copyright infringement just don't scale in a sensible way. The theoretical fine in this case is simply preposterous. They may as well fine them eleventy gazillion dollars. It'd be just as realistic.

My personal digital library would be worth more than the GDP of the United States if I could be found liable for copyright infringment. However, I have legally purchased everything that I have ripped into digital format, so it'd be a stretch to say that my circumvention of DRM measures does not fall under fair use. But it's not like I or Wayback Machine can blitz the legal system here, because copyright owners reserve the right to pursue infringement on as many or few violations as they see fit. If you've downloaded 3,000 albums off of a torrent, they can choose to sue you for one and not the other 2,999, because they're just evil, not stupid. They know that a trillion dollar verdict would make the laws illegal under the Constitution. It's a neat point, but it will remain theoretical and business will continue as usual.

No, I think you should be serious. Your argument here is what? That digital information cannot have value in dollars? Or that an upper limit exists on digital value?

Of course there's an upper limit. Digital information cannot be worth more than all existing money. That's really the maximum value it could be exchanged for. Two thousand times the national debt is probably more money than currently exists.

In practice it's not worth much more than the average person's disposable income. Fines that scale into the millions and exceed the average individual's lifetime earnings are rather pointless as they'll never be fully paid. The statutory damages for digital copyright infringement just don't scale in a sensible way. The theoretical fine in this case is simply preposterous. They may as well fine them eleventy gazillion dollars. It'd be just as realistic.

Digital information inherently has no value thats why the net is so huge and so sought after.

With that said its a tool that can be used to sell information, and that is where copyright should come in and say if you attempt to make a profit you need a license from the CP owner. Ifs it shared for free in all practically should be an individual right.

First, if webmasters were smart enough all they would have to do is add a robots.txt file to the web page and the Wayback Machine will bypass the caching of it. I know, I have tried to look up pages through Archive.org and have seen their page displaying why the page was not saved. I personally applaud the efforts of The Internet Archive and have used/referenced it many times.

I maybe wrong, but I was always under the impression that libraries generally pay a higher rate for books in order to gain the right to distribute them. They can't just run to the nearest Barnes and Noble, buy a book off the shelves, and then start lending it out.

I'm not certain, but you're probably thinking of rentals. Video rental stores would pay more money per video than retail for the modified distribution rights. I'm not sure if that's still true and I'm sure it was never true for video games. Libraries also accept book donations, so they aren't paying any extra fees there (although my university library had paperwork for each donations, but I think that was for tax receipts). Besides, most libraries aren't hugely profitable right? (Unless US libraries are very different from those here in Canada.)

@GohanIYIan: Currency isn't the only way to buy things. As rombuu pointed out, you could pay mercury to any one who values it.

No, I think you should be serious. Your argument here is what? That digital information cannot have value in dollars? Or that an upper limit exists on digital value?

Of course there's an upper limit. Digital information cannot be worth more than all existing money. That's really the maximum value it could be exchanged for. Two thousand times the national debt is probably more money than currently exists.

In practice it's not worth much more than the average person's disposable income. Fines that scale into the millions and exceed the average individual's lifetime earnings are rather pointless as they'll never be fully paid. The statutory damages for digital copyright infringement just don't scale in a sensible way. The theoretical fine in this case is simply preposterous. They may as well fine them eleventy gazillion dollars. It'd be just as realistic.

No, that's not true. These fines were envisioned to apply to companies who performed large scale infringement. If we limit such fines to an average persons disposable income, then suddenly the cost of infringement on large scales becomes smaller than the profit.

Instead of saying digital information has no value (which should be clearly untrue, see cancer example above), or has some static limit (like an average income, which makes mass infringement profitable), we should be grounding the value in something real, like ACTUAL DAMAGES.

This is not to say I fully agree with the position that Wayback Machine should be subject to copyright infringement laws. But the question isn't simple (they never are...). Think of a library. Would you say it has the right to copy printed material without authorization in order to make them available for the public? The least they do is buy the books/magazines/newspapers. After obtaining the copyrighted material legally, they are then under the exemption in copyright law that allows libraries to make the material available to the public.

2. Libraries that deal in physical materials do not actually COPY books. They purchase them legally, and then distribute them free of charge. No copying takes place.

It is not illegal to purcahse a copyrighted material from a store, then give (or even sell) it to someone else. Its copyright, not distributionright.

Copy right limits distribution as well....

You are right, technically, but my example was in physical goods purchase. Once I purchase a physical book, there is no limit on my ability to distribute THAT SPECIFIC book. I cannot distribute copies of it, but I can distribute the copy I purchased.

Think of a library. Would you say it has the right to copy printed material without authorization in order to make them available for the public?

I maybe wrong, but I was always under the impression that libraries generally pay a higher rate for books in order to gain the right to distribute them. They can't just run to the nearest Barnes and Noble, buy a book off the shelves, and then start lending it out.

What law is there against doing exactly that? It certainly isn't copyright.

Instead of saying digital information has no value (which should be clearly untrue, see cancer example above), or has some static limit (like an average income, which makes mass infringement profitable), we should be grounding the value in something real, like ACTUAL DAMAGES.

It already works that way. As a rightsholder, you get to claim compensatory damages (i.e., legal speak for "actual damages") as well as statutory damages. The latter damages often produce insane numbers with digital copyright violations. Statutory damages, by definition, can't be grounded in the real specifics of the case because they're preset by statute. The best you can do is use the minimum - $750. In this case, that gives you 112.5 trillion dollars (a mere 8 times the national debt). Obviously that figure is still ridiculous.

That's the crux of the problem and why, IMO, statutory damages for digital works need revising. I have no objection at all to rightsholders getting compensatory damages for actual losses suffered.